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Medical law – The role of the new Health Standards Watchman

The National Health Amendment Act, 12 of 2013 (“the Amendment Act”) provides for the establishment of quality requirements and standards in respect of health services provided by health establishments in both the public and private health sectors. The purpose of the quality requirements and standards is to promote and protect the health and safety of the users of health services. These quality requirements and standards are prescribed by the Minister after consultation with the Office of Health Standards Compliance (“the Office”).

The Amendment Act provides for the appointment of an Ombud, whose function is to consider, investigate and dispose of complaints relating to the non-compliance with the prescribed quality requirements and standards in a fair, economical, independent and expeditious manner.

When conducting an investigation, the Ombud may obtain testimony by affidavit or declaration, or he may direct any person to appear before him to give evidence under oath or affirmation, or produce any document in his possession or under his control pertaining to the complaint being investigated. Any person being implicated in a matter being investigated must be given an opportunity to be heard by giving evidence and by questioning other witnesses who have appeared before the Ombud.

Any aggrieved party may lodge a written appeal with the Minister against a finding by the Ombud within 30 days of becoming aware thereof. The Minister must appoint an independent ad hoc tribunal and submit the appeal to the tribunal for adjudication. The tribunal consists of a maximum of three individuals with a retired High Court judge or a magistrate as chairperson. The remaining two seats are filled by individuals knowledgeable of the health care industry. The tribunal may confirm, set aside or vary the decision of the Office or the Ombud and must notify all concerned parties accordingly.

Certain provisions of the Amendment Act may be in conflict with the Promotion of Administrative Justice Act, 3 of 2000 (“PAJA”). PAJA requires that all administrative action must be lawful, reasonable and procedurally fair. The Amendment Act only allows an accused to question a witness that has been called by the Ombud. It does not provide for an accused to call its own witnesses. The question arises as to what will happen should the Ombud fail or refuse to call a witness who has crucial evidence in support of an accused’s case.

The Amendment Act further stipulates that questioning of a witness must be done “through the Ombud”. The meaning of this phrase is unclear and it would seem that an accused cannot question a witness directly but has to address questions via the Ombud as a conduit. The extent to which the Ombud may filter such questions is concerning.

The Amendment Act provides that no self-incriminating evidence made during an investigation by the Ombud may be used against a person in any subsequent criminal proceedings, except with regard to perjury or an offence in terms of the National Health Act, 61 of 2000. The same protection is not afforded in respect of any subsequent civil proceedings and any self-incriminating evidence will be admissible. Add this and no allowance for legal representation to the mixture of unfair witness practices and you get a recipe for substantial risk with regard to subsequent civil proceedings.

The question arises whether an aggrieved patient with a potential civil claim for medical negligence could make use of the Ombud hearings as a tool to seek out self-incriminating evidence against a health establishment. This is a definite possibility in cases where the alleged transgression by the health establishment relates to non-compliance to one of the promulgated health standards.

The concept of an Ombudsman is not a new one and has been introduced with some success in other industries, such as the insurance and banking industries. An Ombudsman without clearly defined powers and appropriate authority when it comes to sanctioning bad behaviour is, however, not expected to be particularly effective. The Amendment Act contains only basic information pertaining to the Ombud and it will be necessary for the Minister to make regulations that will determine issues such as the identity of complainants, the type of complaints that can be adjudicated, the types of findings that the Ombud can make and the procedures to be followed during the investigation of a complaint.